A BILL to amend the Code of West Virginia, 1931, as amended, by
adding thereto a new article, designated §16-44-1, §16-44-2,
§16-44-3, §16-44-4 and §16-44-5, all relating to creating the
Restroom Access Act; requiring access to employee-only
restrooms by individuals with certain medical conditions who
present a valid medical alert restroom access card under
specified circumstances; limiting liability to the
establishment; and providing criminal penalty for violation.

Be it enacted by the Legislature of West Virginia:

That the Code of West Virginia, 1931, as amended, be amended
by adding thereto a new article, designated §16-44-1, §16-44-2,
§16-44-3, §16-44-4 and §16-44-5, all to read as follows:

ARTICLE 16. PUBLIC HEALTH.

ARTICLE 44. RESTROOM ACCESS ACT.

§16-44-1. Short title.

This article shall be known as the Restroom Access Act.

§16-44-2. Definitions.

As used in this article:

(1) “Customer” means a person or individual who is lawfully

on the premises of a retail establishment.

(2) “Eligible medical condition” means any medical condition
that requires immediate access to a restroom as determined by a
health care provider. These conditions include, but are not
limited to, Crohn’s disease, ulcerative colitis, any inflammatory
bowel disease or irritable bowel syndrome.

(3) “Medical alert restroom access card” means a card provided
by the Foundation for Clinical Research in Inflammatory Bowel
Disease or other nationally recognized organization indicating that
the carrier has an eligible medical condition and needs immediate
access to a restroom.

(4) “Restroom” means a toilet facility.

(5)“Retail establishment” means a place of business open to
the general public for the sale of goods or services to an ultimate
consumer. A retail establishment includes, but is not limited to,
a grocery store, mercantile, delicatessen or any place where
merchandise is displayed, held or offered for sale.

§16-44-3. Customer access to employee-only restroom facility.

(a) A retail establishment which has a restroom for its
employees that is not open to the general public shall allow a
customer to use the employee-only restroom during normal business
hours if the following conditions are met:

(1) The customer requesting the use of the restroom suffers
from an eligible medical condition or uses an ostomy device;

(2) The customer requesting access to an employee-only
restroom presents a valid medical alert restroom access card which
contains language that states the holder has an eligible medical
condition and requires immediate access to a restroom;

(3) The retail establishment does not normally make a restroom
available to the public;

(4) The restroom is not located in an area where providing
access would create an obvious health or safety risk to the
customer or an obvious security risk to the retail establishment;
and

(5) A public restroom is not immediately accessible to the
customer.

(b) Nothing in this article shall be construed to require a
retail establishment to open an employee-only restroom to the
general public. The employee-only restroom shall remain private.

§16-44-4. Limitation of liability.

(a) A retail establishment or an employee of a retail
establishment is not civilly liable for any act or omission for
allowing a customer that has an eligible medical condition and
presents a valid medical alert restroom access card to use an
employee-only restroom, if the act or omission:

(1) Is not willful or grossly negligent;

(2) Occurs in an area of the retail establishment that is not
accessible to the public; and

(3) Results in an injury or death to the customer, or any
individual other than an employee accompanying the customer.

(b) A retail establishment is not required to make any
physical changes to an employee-only restroom under this article.

§16-44-5. Penalties for violations.

A retail establishment or an employee of a retail
establishment that violates the provisions of this article is
guilty of a misdemeanor and, upon conviction thereof, shall be
fined not more than $100.